Recently, in a case of first impression, the Trademark Trial and Appeal Board refused to grant trademark protection to the flavor of an anti-depressant tablet on the grounds that the flavor was functional and incapable of serving as a mark. In re N.V. Organon, 79 USPQ2d 1639 (TTAB 2006). The decision is a departure from the trend of extending protection to nontraditional trademarks.

Although the board left the door open to the possibility of registering flavor as a trademark, it made clear that future applicants will face significant challenges in registering such marks, including: 1) proving that a flavor has acquired secondary meaning; 2) overcoming the difficulties inherent in protecting a flavor due to the subjective nature of taste; and 3) proving that a flavor functions as a source indicator despite the fact that consumers are not exposed to a product’s flavor prior to purchase.